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105 C. Cls. Reporter's Statement of the Case Same; defendant cannot take advantage of its own wrong.–When
plaintiff demands payment due to it, defendant cannot be heard to say that it is not liable because it refused to enter into that contract which under the law it was defendant's duty to execute. Defendant cannot take advantage of its own wrong. United States v. Peck, 102 U. S. 64; Stearns Co. v. United States, 291
U. S. 54. Williston on Contracts (Rev. Ed. 1936), section 794. Same; plaintiff not a volunteer in instant case but by performing a
duty imposed by law on defendant was subrogated to seamen's rights to collect cost from defendant.—Plaintiff, in the instant case, cannot be considered a volunteer, since under the law the destitute seamen had the right to be repatriated at the expense of the United States; and since this obligation was repudiated by the defendant and it was undertaken, at defendant's indirect request, by plaintiff, then the plaintiff was subrogated to the seamen's rights to collect the cost from the defendant, who owed the duty. Cf. United States v. American Tobacco Co., 166 U. S. 468; Prairie State Bank v. United States, 164 U. S. 227 ; Nashville Industrial Corp. v. United States, 69 C. Cls. 443;
Maryland Casualty Co. v. United States, 91 C. Cis. 203. Same; ratification by consul in absence of contract before perform
ance.-Where the United States consul at Manila did not, before the rendition of the service, enter into a contract for the repatriation of destitute seamen of the President McKinley by the plaintiff but after the service had been performed ratified what had been done and issued a certificate complying in all essential respects with that required by the law and the regulations, except a reservation as to approval by the Comptroller General; it is held that plaintiff is entitled to recover.
The Reporter's statement of the case :
Mor. row & Ambler were on the briefs.
Mr. Allan B. Lutz, with whom was Mr. Assistant Attorney General Francis M. Sca, for the defendant. Messrs. J. Frank Staley and Irving R. Storch were on the brief.
The court made special findings of fact as follows:
1. The American Mail Line, Ltd., plaintiff herein, is and at times mentioned herein, was a corporation duly organized and existing under and by virtue of the laws of the State of Nevada. At the time of the events hereinafter described and at all times prior to November 15, 1940, the American Mail Line, Ltd., was the owner of the American Steamship President McKinley.
Reporter's Statement of the Case 2. The Dollar Steamship Lines, Inc., Ltd., was in December 1937 a corporation duly organized and existing under and by virtue of the laws of the State of Delaware. At all times prior to December 10, 1937, the Dollar Steamship Lines was the owner of the American Steamship President Hoover. The Dollar Steamship Lines in December 1937 was likewise owner of the American Steamship President Pierce. The corporate name of the Dollar Steamship Lines, Inc., Ltd., on November 21, 1938, was duly changed to American President Lines, Ltd.
3. Sometime during the night of December 10–11, 1937, the S. S. President Hoover, having aboard a considerable number of passengers and a large crew, was shipwrecked at Kashoto (Hoishoto) Island, a small island approximately eighteen miles off the East coast of the Island of Formosa and near its Southern tip. The vessel subsequently became a total loss.
The Island of Formosa is about 100 miles off the coast of China, 200 miles North of the Philippines, and about 700 miles South of Japan, and was part of the Japanese Empire.
No adequate facilities existed at or near the scene of the wreck for the handling, feeding, accommodation or transportation of the passengers and crew of the President Hoover.
4. The nearest American Consul to the scene of the disaster was Gerald Warner, consul of Formosa, whose district included the Small Island of Kashoto, where the President Hoover was wrecked. The American Consulate was located at Taihoku, which is the capital of Formosa, and is in the Northern part of the island.
Taihoku is about 200 miles from Kashoto, and two means of travel existed between Kashoto and Taihoku. There was a boat that left Keelung (located near Taihoku) on a biweekly service around the island, calling at various ports on the East Coast, and also calling at Kashoto.
There was also a daily airplane service in a 12-passenger airplane to a city called Taito, which was located in the Southeastern part of Formosa, about twenty miles from the Island of Kashoto. A small boat could be hired to go from Taito to Kashoto.
105 C. Cls. Reporter's Statement of the Case A small wireless station was located on the Island of Kashoto, and formed part of the Japanese Bureau of Communications.
5. The Island of Formosa was not a port of call for either the American Mail Line or the Dollar Line. The Dollar Line, however, maintained an agency at Taihoku to solicit passengers and cargo, and such agency was maintained by a Mr. Hogg, who conducted an independent business and ran a number of agencies as representative of a number of different firms, including the Dollar Line Agency.
American Consul Warner was informed about the wreck on the morning of December 11 by the Japanese Bureau of Communications, and thereafter conferred with Mr. Hogg regarding the transfer of the passengers and crew from the Island of Kashoto to whatever point they should go. Warner also sent several telegrams to the Captain of the President Hoover, but there is no evidence as to the subject matter of such communications.
No request was made to Mr. Warner by any representative of the Dollar Steamship Lines or the American Mail Line to issue any certificate or certificates with respect to the expenses of repatriation or maintenance of the members of the crew of the President Hoover, and Mr. Warner did not make any proffer to take care of the crew as far as their sustenance, maintenance, or transportation was involved.
At the time of the wreck Mr. Warner was alone in the Consulate office, and therefore had to stay at Taihoku and could not visit the scene of the wreck.
6. The S. S. President Pierce on or about December 14, 1937, en route on her scheduled run between San Francisco and the Far East, was diverted to the wreck, and took aboard approximately 174 members of the crew and some passengers of the wrecked vessel, and transported them direct to Hong Kong, China, where she arrived on or about December 16, 1937.
The S. S. President McKinley on or about December 13, 1937, likewise en route to the Far East, was diverted and proceeded to the wreck and took aboard and transported to Manila, P. I., 15 members of the crew of the wrecked vessel and arrived on or about December 15, 1937, at Manila, P. I.
Reporter's Statement of the Case No contractual obligation existed between the S. S. President Hoover and its crew obligating the former to repatriate the crew in the event of shipwreck.
All of the vessels named herein were, at the time mentioned, merchant vessels of United States documentation, engaged as common carriers in the carriage of passengers and freight between ports on the Pacific Coast of the United States and ports of Japan, China, and the Philippine Islands.
7. On December 16, 1937, the President McKinley sailed from Manila, P. I., with eleven of the fifteen former members of the crew of the President Hoover which she had brought there from the scene of the wreck and transported them to the port of San Francisco, California, where they were disembarked on January 7, 1938. There is no evidence that the master of the President McKinley was requested by a consular officer of the United States to take on board the eleven seamen or to transport them from Manila to California, and no certificate with respect to their transportation was issued by a consular officer of the United States prior to their embarkation on the S. S. President McKinley at Manila. A certificate was subsequently issued under date of January 12, 1938. (See Finding 15.)
8. In December 1937 the Robert Dollar Company acted as General Agent for both Dollar Steamship Lines, Inc., Ltd., and American Mail Line, Ltd., at the Port of Hong Kong, and at certain other ports in the Orient.
On December 17, 1937, Mr. W. F. Arndt, an employee of the Dollar Line at Hong Kong, wrote the American Consul General at that port as follows:
I have to inform you that our S. S. President Pierce arrived here last night having on board 176 American members of the crew of the S. S. President Hoover which, as you know, has been wrecked on Hoishoto Island, off Formosa.
Due to the crowded conditions as regards quarters for these men on the S. S. President Pierce, it was found necessary to land about 90 members of this crew in Hong Kong last night, and the balance will have to be landed today.
It is my understanding that, under the navigation laws of the United States, in case of shipwreck, the wages of the crew cease as from the day they leave the ship105 C. Cls. Reporter's Statement of the Case wrecked vessel, and that their status then becomes that of distressed seamen. If my understanding is correct, I hereby suggest that these men should, therefore, now come under the care and expense of the United States Government as from the time they were landed from the S. S. President Pierce, and I respectfully request that
you take action accordingly. The American Consul General replied to this letter as follows:
I have your letter of December 17th, 1937, stating that 176 members of the American crew of the S. S. President Hoover, recently wrecked on Hoishoto Island off Formosa, have now arrived in Hong Kong on the S. S. President Pierce of your company. You request that these members of the crew should as distressed seamen come under the care and expense of the United States Government as from the time they are landed here from the S. S. President Pierce.
The Consulate General in considering whether, under the special circumstances involved, it can assume responsibility for those members of the crew, has consulted the Regulations by which it is governed in such matters and quotes for your information the following:
“RELIEF FOR SHIPWRECKED SEAMEN (46 U. S. C. 593 and Consular Regulations, section 271)
“Note 16. 'As soon as the owners of a wrecked vessel take up the burden of subsisting and transporting the members of the crew they cease to be destitute seamen and such owners may not be reimbursed from public funds for any part of the cost of subsistence and transportation of such seamen to a port of the United States.'-3 Comp. Gen. 148.
“ 'The liability of the United States for the necessary relief and transportation of shipwrecked seamen depends upon a condition of distress or destitution and no such condition can exist if the owner or master of the vessel assumes or can be required to render the necessary relief and transportation for which the vessel is primarily liable.'—Comp. Gen. A-25961, Feb. 15, 1929.”
As the Dollar Company, owners of the S. S. President Hoover, have taken up the “Burden of subsisting and transporting the members of the crew" of the S. S. President Iloover, and as I understand that arrangements exist for their repatriation within two or three days from Hong Kong to the United States on the S. S.